(March 23, 2007) - A federal district court in Philadelphia ruled yesterday
that the 1998 "Child Online Protection Act," or COPA, violates
the First Amendment. ACLU v. Gonzales is the sixth judicial decision
concerning COPA, and although it is not likely to be the final one, it
is now clear that the courts prefer Internet filters to criminal censorship
laws as a way of shielding minors from sexual expression that is assumed
- without analysis - to be harmful to them.

COPA makes it a crime to distribute, "for commercial purposes,"
material that is "harmful to minors" on the World Wide Web. It defines
"harmful to minors" in the same vague terms as our current obscenity law
- only adjusted downward for teenagers and children. That is, COPA bans
speech about sex or nudity that is "patently offensive with respect to
minors," that, taken as a whole and as measured by "contemporary
community standards," appeals to the "prurient interest" of minors,
and that, taken as a whole, "lacks serious literary, artistic, political,
or scientific value for minors."

Federal Judge Lowell Reed first entered a preliminary injunction against
COPA in 1999. He found that the plaintiffs - the ACLU, other civil liberties
groups, and a collection of Web publishers including Salon.com and Androgyny
Books - were likely to succeed on the merits of their claim that COPA
violates the First Amendment.

This was because the "harmful to minors" standard is a content-based
restriction on speech that's constitutionally protected for adults, and
therefore must satisfy "strict" First Amendment scrutiny. Under
strict scrutiny, the government must show that the law serves a "compelling
state interest" and is the least restrictive means available to accomplish
that interest. The compelling state interest seemed to be a given - protecting
minors from pornography - but Judge Reed thought filters were likely to
be a less restrictive means of accomplishing the goal than a criminal
law banning this sort of expression.1

The U.S. Court of Appeals for the Third Circuit affirmed the preliminary
injunction, but on a different ground. It said that the unpredictable
"community standards" test to determine what online expression is "prurient"
for minors is unconstitutional because it means that prosecutors in the
most puritanical communities will be able to impose their restrictive
standards on all of cyberspace. But the Supreme Court disagreed, ruling
in 2002 that the vagueness of "community standards" is not in itself enough
to invalidate COPA.2 This decision was driven by political
reality: if "community standards" is not a permissible test for the Internet,
then not only "harmful to minors" law but also adult obscenity
laws could not constitutionally apply to cyberspace.

The case went back to the Third Circuit, which again upheld the preliminary
injunction against COPA, ruling now that the law's definitions of "harmful
to minors" and "for commercial purposes" are too broad and vague to withstand
strict scrutiny under the First Amendment, and that there are less burdensome
alternatives that could shield minors from "harmful" expression. Again,
the government appealed, and on June 29, 2004, the Supreme Court affirmed
the preliminary injunction by a 5-4 vote.3

Justice Anthony Kennedy, writing for the Court majority, assumed that
COPA is justified because of the government's "compelling interest" in
protecting youngsters from sexually explicit speech. But, he said, the
government hadn't met its burden of showing that COPA is the least restrictive
means to achieve the goal. Internet filters, Kennedy opined, are more
effective than COPA in blocking minors' access to sexual material. And
they are less restrictive of adults' First Amendment rights to read and
view Web sites with sexual content. The Court ignored the well-known overblocking
tendencies of filters, which by necessity must rely on mechanical searches
for key words and phrases in order to identify what Web sites to block.4

Although at this point, the government might have given up and allowed
the preliminary injunction to be transformed into a permanent one, it
chose instead to go forward with a full trial. The result may have been
a foregone conclusion, given the Supreme Court's clear signals, but the
trial that took place in October and November 2006 was intensely contested,
with the ACLU and the Justice Department presenting warring experts on
the effectiveness of Internet filters as well as the availability of adult
identification procedures that COPA says can provide a "safe harbor"
from liability for Web sites that use them.

Ironically, in view of the ACLU's educational materials pointing out
the massive censorship potential of filters, the ACLU and its fellow plaintiffs
now presented experts touting filters' virtues, while the government,
which had praised filters a few years earlier when it successfully defended
a federal law that mandated their use in schools and libraries,5
now pointed out their flaws. The ACLU explained its apparent inconsistency
by saying that filters are fine as long as nobody is compelled to use
them.

Judge Reed in his March 22 decision avoided the problem of overblocking
by explaining that it is really only underblocking - that is, the failure
of filters to suppress every sexually explicit site - that is relevant
to the "less restrictive alternative" analysis. He accepted
the testimony of the ACLU's experts that filters had improved in accuracy
since their early days, and indeed, found that they are more effective
than COPA in accomplishing the government's goal, since they can block
email and chatrooms as well as Web sites, and they filter material originating
overseas, whereas COPA probably would not have extraterritorial effect.

Judge Reed went on to rule that COPA is also unconstitutionally vague
and overbroad. Among the unduly vague terms are "taken as a whole"
(does this mean an entire Web site, a single Web page, or a single item
on the page?), and "minors" (does one measure prurience, patent
offensiveness, and lack of serious value for a 6 year-old or a 16 year-old?).
This uncertainty also renders the statute overbroad, because it will chill
speech that is not necessarily "patently offensive" or lacking
in value for older minors.6

As in his first opinion in the COPA case eight years ago, Judge Reed
expressed regret that he had to invalidate a law that had the "crucial"
goal of "protecting children from sexually explicit materials."
But, he suggested, "perhaps we do the minors of this country harm
if First Amendment protections, which they will with age inherit fully,
are chipped away in the name of their protection."7

Update: On June 10, 2008, the government's appeal from Judge Reed's latest COPA decision was argued in the U.S. Court of Appeals for the Third Circuit. For a description of the oral argument, which turned largely on the alleged virtues of Internet filters, see John Morris's blog. On July 22, 2008, the Third Circuit affirmed Judge Reed's decision. On January 20, 2009, the Supreme Court sounded the death knell for COPA when it declined to review the Third Circuit's decision.

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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